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CBP Says New Plant/Plant Product Import Declaration Could Affect One-Third of HTS, Delay Entry Release, Etc.

During the August 7, 2008 meeting of the Departmental Advisory Committee on Commercial Operations of U.S. Customs and Border Protection and Related Homeland Security Functions (COAC), CBP officials discussed the potential impact on the trade of the new Lacey Act plant and plant product import declaration requirements1 that were recently enacted as part of the 2008 Farm Bill.

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Plant/Plant Product Import Declaration Expected to Take Effect December 15th

According to CBP sources, these new requirements are expected to take effect on December 15, 2008.

CBP officials state that the Office of Trade has been working with the U.S. Department of Agriculture (designated as the lead agency), the Department of the Interior, and the Justice Department to implement the new import declaration requirements.

Scope of New Requirements Expected to be Further Defined

CBP officials note that the scope of the "plants" subject to the new Lacey Act import declaration requirements is expected to be further defined during the regulatory process.

Third of HTS Could be Affected by New Import Declaration Requirements

Although the definitive scope of products subject to the new requirements is not yet known, CBP officials estimate that a third of the Harmonized Tariff Schedule (HTS) could be affected by the new Lacey Act import declaration requirements.

CBP officials noted that while the obvious products (wood, cork, pulp, paper products) would be affected, there are also some less obvious products that could be subject to the Lacey Act import declaration requirements (e.g., certain vegetable plaiting materials, straw, printed materials, textiles, fibers, apparel, umbrellas, walking sticks, furniture, tools, musical instruments, toys, games, sporting equipment, etc.).

CBP states that it did some preliminary research on the four most basic chapters affected by the new import declaration requirements (HTS chapters 44, 45, 47, and 48) and found that there could be 8,000 entry lines daily for which an import declaration could be required.

CBP Expects to Require Paper Import Declaration as it is Unable to Automate

Although the Farm Bill's joint explanatory statement of the House-Senate conferees urges the USDA and Interior to develop a system to allow the electronic filing of the import declaration required by the Farm Bill, CBP officials stated that they would not be able to automate the import declaration.

According to CBP, the problems with automating the import declaration include: the extensive amount of programming that would be necessary; the fact that CBP isn't building in the Automated Commercial System (ACS) now and that it would be several years before something could be done in the Automated Commercial Environment (ACE); the absence of automation funding in the Farm Bill; the fact that USDA does not have an automated feed into CBP's system; etc.

CBP Predicts Delayed Release for Entries Needing Import Declarations

CBP officials noted that if the Lacey Act amendments result in CBP requiring paper import declarations, this could adversely affect the eligibility of affected products for paperless processing. CBP officials also noted that collecting all of this paper means that affected entries would not be eligible for immediate release at cargo.

CBP is Working with Other Agencies on Penalty Issues

CBP is currently working on determining the penalty situation, noting that the Lacy Act provides for civil and criminal penalties, and CBP is looking into whether there would be any 592 penalties.

CBP officials noted that they would be advocating no penalties in the beginning, but that such issues still need to be resolved.

CBP Asks COAC for Help in Testing New Requirements

CBP asked for COAC's assistance in conducting a test to determine whether importers would be able to provide the information required on the import declaration. CBP officials stated that they would like to have this test completed within the next few weeks.

CBP May Use Test Results as Evidence New Requirements Need to be Modified

CBP may use the results of the test to make the argument that December 15, 2008 is not a workable effective date, or possibly that the extent of the information required is not readily available to importers and/or that the new requirements should only apply to certain commodities.

1The Farm Bill's amendments to the Lacey Act Amendments of 1981 will make it unlawful to import any "plant" (or plant product) unless a person files a declaration upon importation that contains (partial list):

the scientific name of any plant (including the genus and species of the plant) contained in the importation;

a description of the value of the importation and the quantity, including the unit of measure of the plant; and

the name of the country from which the plant was taken.

(See today's ITT, 08081805, for BP's detailed summary of the Lacey Act amendments.)